Suffian J:

The Sarawak Government resumed under Pt IV of the Sarawak Land Code (Cap. 81) 19 parcels of lands "for the purposes of residential and industrial development and other public facilities in connection with the new port of Kuching." In due course enquiries Were held by the Superintendent of Lands and Surveys, First Division, Sarawak (the present appellant) to determine the compensation payable to the owners. We are not concerned with 17 parcels whose owners accepted the superintendent's award; we are only concerned with two parcels, lot No: 16178 (which I call the first lot) and lot 16179 (the second lot) whose owners, M/s. Aik Hoe & Co. Ltd (the present respondents) objected to the superintendent's award.

The owners are entitled by way of compensation to the market value of the lands on the agreed material date 1 April 1960 s. 60(1)(a); so the issue in this matter is simply this, what was their market value on that date. The superintendent decided it was $237,760 or about $5,460 per acre. On appeal by the owners, Harley J, in the Kuching High Court increased it to $607,000 or $13,900 per acre. The superintendent now appeals to this Court.

The first lot was transferred to the owners on 11 May 1949 at a price of $19,000, that is about $700 per acre, and the second lot on the same date at a price of $21,000, that is about $1,200 per acre. The superintendent makes nothing of these prices and rightly so, because these transactions took place long before the material date.

The following facts are not in dispute. Both lots are situate about four miles from the State capital Kuching a town of about 50,000 souls at the material time (the Kuching rural area had about 100,000 souls). Both lots front the Pending Road, the first lot to the north and the second to the south of that road. The first lot 25.72 acres in area is, except for about an acre, below the ten-foot contour line, and the second lot 17.82 acres in area is as to about half an acre below the ten-foot contour line and surrounds two lots known as OT 16180 and 16181 used as graveyards. Fill for the low-lying parts of the lands could be obtained from the lands themselves, so as to reduce development costs.

Both lots were at the material date within the Kuching municipality, within a mixed zone area which means that they could be held by non-indigenous proprietors and were classified as town land. Title for both lots was without conditions and for a term of 900 years from 17 July 1911 and carried the general description "agriculture".

Both lots were undeveloped except for minor improvements on the second, and no permission to subdivide (which was necessary for development) had been applied for either lot.

There was no electricity or main water supply to any of them. The main supply and electricity stopped at the junction of the Kwong Lee Bank Road and Pending Road about half a mile away to the east.

The material date was 1 April 1960 the lands acquired were wanted by Government in connection with the new port of Kuching, but it was agreed that the public knew even in 1958 of Government's intended development of the new port because that year Government built the new wharf at Tanah Puteh and this public knowledge affected land prices in the locality.

On 19 September 1961 at an enquiry before the superintendent, the owners claimed $30,000 per acre.

In the event on 16 March 1963 the superintendent awarded the owners $237,760 or about $5,460 per acre. Taking into account sales of other lands in the vicinity, he valued the first lot at $121,460 as follows:

(a) 9.72 acres at $5,500 per acre = $ 53.460

(b)8.00 acres at $4,500 per acre = $ 36,000

(c)8.00 acres at $4,000 per acre = $ 32,000

Total $121,460 (average $4,730 per acre)

and the second lot at $116,300 as follows:

(a) 6.00 acres at $7,000 per acre = $ 42,000

(b)11.82 acres at $6,000 per acre = $ 70,920

Total $112,920

To this he added $3,380 for improvements and trees on the second lot, making